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Intro to FOI

By: Jessica Huseman

Owner, The Friendly State News

972-268-1882

#This presentation is about the Freedom of Information Act — the federal law. While there are a couple of slides in here about what I’m going to collectively refer to as FOIL (Freedom of Information Law) for state records laws, this is largely about federal records requests. The general thought processes and reporting tips throughout will be applicable to both, however, so if you just want to file state-level records requests you’ll still benefit.

#I will label some things “turn and talks” in this slide. I find class discussions are more productive when you allow the students to talk to each other to answer the question first in small groups (2-3 max) and then open it up for class discussions. I highly recommend this, because for many students thinking about records is a muscle they haven’t flexed. This will allow them to make mistakes in a small setting rather than in front of the whole class, and will get shy students to participate with more confidence in a whole class setting.

#Please let me know if you think something in here doesn’t make sense, is incorrect or could use additional heft. I am of the mind that journalism education (and all education – I used to teach high school at a very collaborative school and loved every minute of it) should be collaborative. I want to know if this is a shit powerpoint, so please don’t hesitate to send feedback. I’ll use it to make it better, and my students will get a better education.

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What is FOIA?

In the US, you can inspect the work of your government on a local, state and national level.

*Records* not *information*

The Freedom of Information Act applies specifically to executive branch agencies, though the office of the President and the Vice President are not FOIA-able (they do have to adhere to the Presidential Records Act).

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The government is just a bunch of records

No one does anything without a record.
Think about records broadly – NOT JUST PAPER.
You should be asking your sources how they know things, and where that information is recorded.

Example questions:

How do you know how many schools are sitting on toxic waste dumps?
How is that information tracked? Is there a specific form? What’s that form called?
What agency records that information? Is it kept in a database? What is the name of that database? What format are those records kept in?

Generally, the government doesn't do something unless it creates a record to do that thing. While reporters generally restrict themselves to things we’d traditionally consider “records” (like contracts, specific forms with names, budgets, etc) we should try and think more broadly. A government official who swipes into the building with a key card creates a record of entry every time they arrive for work. A parking lot manned by a government agency that requires a parking permit is creating records when people enter the parking lot or get ticketed. An internal memo given to an employee outlining a new focuses based on the priorities of the new administration is a record. Emails to and from government employees – sometimes even personal emails! – are records. Taped phone calls, transcripts of meetings, sign in sheets at government events – all of these things are records. They are anything that has been recorded in any format.

As you do interviews, you should start weaving in questions about what records might exist. For example, if a source from within NYC schools has called me to inform me that four schools were built on toxic waste dumps, I’ll want to eventually FOIL for that information from the city. This task will be much easier if I can get my source to tell me exactly what to ask for. How is that information tracked? When a school is built, is an environmental report done? What is the form on which that report is recorded is called? Are these kept in a database? What is that database called? What format are the records kept within that database? You can use all of this information to write a specific request that will be easier for the government agency to respond to, and harder for them to strategically leave things out of.

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Think critically about the ways your subject touches the government.

A RESTAURANT: Health code violations, 911 calls, lawsuits, employment violations, zoning regulations, alcohol licenses, business filings, city contracts, tax incentives or breaks.
A HOSPITAL:

What agencies are most relevant?
Within the relevant states, which state agencies are you interested in? How about the federal government?
How might hospital consumers interact with the government in ways that produce records?

People, businesses and organizations interact with the government in lots of ways. Even if you are writing about a private business, like a restaurant, you can find out a lot about it by filing strategic records requests with the government. A restaurant will have records created in typical ways — like health code inspects, liquor licenses and its zoning laws. But, it will will also probably have some history with the police. 911 calls might have been made from the restaurant or about something that happened inside of the restaurant, the restaurant or its owners might have been sued for any number of things, and if the city has its own employment complaint line people might have called in tips to that. If the business was attracted to the area by special tax breaks, those will also create records.

Have your students think through the remaining three on this slide — a hospital, a federal politician and a dead child — out loud with the people sitting near them. Try and keep the groups to two or three people, and circulate to make sure they are all contributing to the brain storm session. If they struggle, ask them prompting questions: What government agencies would each of these people interact with? Why would they have that interaction? What records do you imagine they might have created because of that interaction? Ask them to be creative and think outside of the box. They should come up with any record they can think of – even if you have to tell them some things are really gettable. Get them proactively thinking about the structure of government surrounding these things, and what records those government entities might create. After three minutes, list everything they’ve come up with on the board and have a 5 minute discussion. This conversation will obviously go beyond federal FOIA, but it’s just a thought exercise.

Here are a few things (though not all) that they might list:

A hospital: Inspection records, Medicaid and Medicare payments, doctor licensure and discipline with state disciplinary boards, malpractice complaints and suits, 911 calls, arrest records, government contracts (for example, if a hospital is the designated place the police take folks they pick up for mental health calls, there will be a record of this agreement), if the hospital is a non-profit there will be a 990 (you don’t need to file a request for this, it’s online).

A federal politician: Financial disclosures (these are generally online), Congress is not subject to FOIA but you can get their communications with executive agencies who ARE subject to FOIA (the Department of the Interior, for example, proactively puts their communications with politicians online), if the politician owns a business they’ll have business filings you can get, if they were sued or a police report was filed by them or against them those are public.

A dead child: In many states autopsies are public record. States are required to release certain information if a child died from abuse or neglect, so you could get a partial release of their child welfare records if they had were involved with child welfare agencies at the time of their death. The corresponding police report. While there is a federal law barring the release of educational records (it’s called FERPA), FERPA no longer applies when a child is dead — if relevant, you can probably get their education records or their behavioral record from schools. Teenagers who have been involved in school shootings, for example, generally have their school records released. 911 calls from or to their house or their school. Court records.

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Records officers are people!

The records officer is a person you can talk to! Ask them questions.
Still don’t know if you are on the same page? As for a small sample of the record.
Get creative! When one door closes, break the window.

Can’t get their public schedule? Get their key card swipes.
Can’t get an inspection report because it’s a private hospital?...?

A lot of folks file records request without first talking to the records officer. Sometimes, if you know exactly what you want, that’s just fine. Other times you’ll need more information. Records officers generally welcome calls about records because they want their jobs to be easy! If you file a records request that says, “I want records responsive to show the number of x over time,” it’s possible they may simply not track that information in the way you’ve requested it. Or that they aren’t the right agency to ask the question to. You can tell the records officer what information you are trying to get, and see whether or not they track anything like that. And, if they do, what those records are specifically called. This makes their job easier in the end, so most are willing to have this chat. If they never return your calls, file it! Maybe they’ll return it once they get a complicated request. A key point, though, is that records officers have crappy jobs — they are paid very little and they generally are overworked. Being nice to them and attempting to make their job easier will benefit you in the long run.

After your conversation if you still don’t know if what they are offering will answer your question, ask them to send you a single file or a single row in the database. They will usually do this without a formal records request. Then you’ll know if it’s worth your time to make the full request, or if you still need more.

Sometimes you just can’t get a public record. Maybe it doesn’t exist (or they claim it doesn’t), or maybe its exempt from public records law for some reason. Think about other other records you can get that might answer the question, or at least help you figure out what the answer is.

I once wrote a story about a federal employee who never showed up for work but still took home a 160,000 dollar salary. She was excellent at covering her tracks, and simply didn’t keep a calendar that could be FOIAed. Instead of formally requesting days off, she just didn’t show up for work and because she didn’t have a supervisor (she was the boss!) no one reprimanded her for this. So I called the records officer and we had a long conversation about the types of records that were created when someone came into the building. It turns out that in order to get into the building you always have to swipe in with a keycard, and that this created a log of entries. I filed a request and received a CSV file of all of the dates and times she’d swiped into the building. Just as good as a schedule! I also filed a records request for the expenses for travel she’d filed, so I would know when she was out of the office for legitimate work reasons. I was able to, from those two records, piece together what I would have gotten if I’d been able to get her full calendar.

Have your students turn and talk to each other (for 2 minutes) and make a list of records they might be able to get if they can’t get an autopsy report because it’s not a public record in the relevant state. Then, have a short group discussion. Answers would be: Police reports, 911 calls, relevant court records. Most of these will list the cause of death and might even extensively quote from the autopsy report.

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FOIL (a quick note)

State open records laws are very different state to state
There are two big legal frameworks that make it easier or harder to get laws state to state.

If the state presumes information is public unless the law says otherwise, it’s easier to get records. If the state presumes information is not public unless the law explicitly says it is, you’ll have a harder time.
If the state requires the loser of lawsuits to pay the winner’s court fees, you’ll have an easier time getting public records.

Reporters Committee for Freedom of the Press has excellent state by state guidelines.

All states have their own public records laws that vary wildly. The response times are different (some states don’t even have a response time written into law!) and in some states you have to be a resident of the state to request a record. Some states allow media to get a fee waiver, other states have no fee waiver at all.

I’ve found two legal frameworks that generally tip me off as to whether a state is going to be responsive. First, records laws are generally written in one of two ways. Either states presume everything is public unless state laws say otherwise, or they presume nothing is public unless state law says otherwise. You can get a feel for whether its one or the other by reading the law. But states, like Florida, who have an initial presumption that everything is public tend to have very robust public records offices and even put things up online proactively. It’s very easy to get records from a state like Florida.

Second, a lot of states – states that tend to be Republican — have passed laws to dissuade what they consider to be frivolous lawsuits. These frequently require the loser of a lawsuit to pay the winner’s court fees and lawyers expenses. The state is not exempt from these laws. So, if you sue the state because they refuse to give you a record and the state loses, they are out thousands of dollars. A state like Texas, for example, that has such a law is financially incentivized to comply with their open records law as expediently as possible. Because of this, the state of Texas has set up an entire branch of their attorney general’s office to help you get records out of non-compliant state and local offices. They will actually write a letter on your behalf demanding that the record be released. This isn’t because they altruistically want to follow the law, but because they don’t want to pay for your lawyer when you win. New York, for example, has no such law. If you go to court, you pay your own costs regardless of whether you win or lose. Because of this, New York doesn’t really care if you sue for public records. I sued to get information out of the New York City Department of Education, and they were entirely unbothered. They have attorneys on staff, who they pay regardless of whether they are defending cases or not, and if they lose the only consequence is that they have to give you the record. They don’t have to pay your fees or any fines. This makes it much harder to get records out of New York, and allows New York to delay your records requests without any real fear of consequences.

Make sure you read the Reporters Committee for Freedom of the Press state breakdowns before filing a records request in a state.

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Shredding Calendars!

“If you know what records have already been granted, you can request the same records and not have to wait months for your data. So ask for the agency’s FOIA logs. I’ve also asked for the record retention schedules for state agencies, which help me understand how and where the agencies keep their records and how often they shred them. The record retention schedules are an index, with codes for each department and each kind of document the agency keeps. When I get them, I add their shredding calendars to a master calendar. That allows me to know when they are going to purge their records, so I can request them before they disappear. I’ve also digitized these schedules, so our reporters can search them.” -ProPublica

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When in doubt, FOIA.

You can always rescind a FOIA if a source gives you the information later.
Often, FOIA can be leverage.

Many students I have taught to FOIA wait too long to file their request. They want to answer every single question and try other means to get the record. Don’t do this! FOIAs take a lot of time to get back. Try for a couple of days to get the answers to your questions (like the name of the database or he names of the forms, how these records are kept and who keeps them, etc), but if you run up against a wall or it is just taking much longer than you thought, go ahead and file the record. The worst that can happen is that they tell you no, or they come back to you with questions about what you want. You can always amend your FOIA later or remove it altogether.

Often, FOIAs can be leverage. If someone isn’t answering the questions you want answered, a FOIA can be the little push necessary to get them on the phone. You can even offer to retract the FOIA if someone will just answer your questions. Whether it’s worth it to do that is up to you, but it’s often a good reporting trick. You can also use vey broad and time consuming records requests to incentivize a records office to give you a smaller amount of records faster — this is especially useful if you’ve tried to get a records officer on the phone to ask about how to narrow your request and they never returned your calls. You’ll find they call you quite quickly when you file a burdensome FOIA!

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In some states you have to be a resident of the state to file a FOIL

Alabama*
Arkansas
Delaware
Georgia*
Missouri*
New Hampshire*
New Jersey*
Tennessee
Virginia*

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Requesting Data from Databases

Find out what they call the fields in their database, what their database is called, how they store the data - everything you can. Then use their own language to request the data.

Please provide the list of children who have died of abuse or neglect at the hands of a caregiver from January 2011 to present. You can download the relevant information from your CA/N Central Registry. We’d like the following fields, all of which are public under state law: Name, Case Number, Report Number, Cause of Death….

Sometimes this isn’t possible.

Records responsive to show the name, age, gender, cause and circumstances of death, previous contact with child welfare services and continuing family contact with child welfare services for all children who have died of abuse and neglect in your state from January 1, 2011 to present.

Always request “machine readable” data, and CSVs > excel.

Requesting data is a bit tricky, but you’ll benefit from doing a little extra legwork on the front end. You should try your hardest to figure out what the database is called and what the fields in the database are. This will allow you to make absolutely sure you can get exactly what you want out of the database and prevent states from strategically leaving out information that will make them look bad. For example, this is a sample of a FOIL I sent to a state whose child welfare database was called CA/N Central Registry. I talked to a former social worker who’d entered cases into this database, and she was able to tell me what fields they had to enter. This allowed me to make the request very specific.

Sometimes no one will answer those questions for you, so your request has to be more general. See the difference between the two examples above. But “records responsive to show” is a great catch-all phrase, which asks the state to give me records that can answer a specific question. I then spell out what I want them to answer. I might need to go back after they respond and fill in some holes, but this is a good place to start.

In your request, you should definitely specify the format you want these results to come back in. Records officers love to send things in unreadable PDFs, which you can’t do anything with unless you want to hand enter the data back into a csv file. Request “machine readable” data, which is a nice catch-all term for any file type that isn’t an unreadable PDF. Never request anything be given to you in Excel. Excel – especially pre-2007 excel (which a lot of local governments still use) – has row limitations that will cut off a dataset without notice. CSVs can be as big as they need to be and won’t ever cut off. Because excel (and every single other database management tool) can read CSVs, it’s the best thing to request.

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Exemptions

National defense or foreign policy information properly classified pursuant an Executive Order. 5 U.S.C. § 552(b)(1).
Documents "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). (Has to be trivial and not of public interest)
Documents "specifically exempted from disclosure by statute" other than FOIA, but only if the other statute's disclosure prohibition is absolute. 5 U.S.C. § 552(b)(3).
Documents which would reveal "[t]rade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4).
Documents which are "inter-agency or intra-agency memorandum or letters" which would be privileged in civil litigation. 5 U.S.C. § 552(b)(5).

Documents which are "personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).
Documents which are "records or information compiled for law enforcement purposes," but only if one or more of six specified types of harm would result. 5 U.S.C. § 552(b)(7).
Documents which are related to specified reports prepared by, on behalf of, or for the use of agencies which regulate financial institutions. 5 U.S.C. § 552(b)(8).
Documents which would reveal oil well data. 5 U.S.C. § 552(b)(9).

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When to appeal

Always*

Less than 5 percent of FOIAs are appealed, but 1/3 of appeals are granted.
The worst thing they can do is tell you no.

*Before you appeal, call to see what you can negotiate
If they take over their allotted amount of time.

For federal records, this is 20 business days.

If they charge you money.
If they deny your request for expedited processing.

ALWAYS APPEAL. Generally you have a very limited window to appeal a public records request once it has been granted. Outside of that window, there’s not much you can do to get more information or question what they’ve given you without filing another request. Appealing allows you to extend that window for a much longer time frame, so you have much more time to get more out of the government.

Less than five percent of FOIAs are appealed, but 1/3^rd of them are granted. The numbers are generally in your favor.

If you are missing something and you need it ASAP, call and see what you can negotiate with the FOIA officer. Can you get something else that might answer the same question? Could you get a small slice of whatever they’ve denied? If you are crunched for time, call and see what the FOIA officer is willing to do for you.

You can request that they waive your fee because you are a reporter and you are filing the request in order to inform the public. Sometimes this flies, sometimes it doesn’t. If they charge you a LOT of money, make them first give you an invoice that breaks down the cost and justifies the number of hours that they’ll spend fulfilling your request. Sometimes this is enough to get them to reduce the fee, because they realize it will not actually take them 50 hours. I recently got a bill from the University of Michigan (public universities are subject to public records requests!) for nearly $3,000 because they estimated it would take 50 hours to sort through emails from a specific professor on a specific topic. That was obviously crazy, and they reduced the bill by more than 2/3rds when I requested a specific invoice of how they’d be spending those hours.

If they deny your request for expedited processing, you can generally appeal this. It likely will be denied, but you should try anyway.

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FOIA officers are sometimes sneaky.

- They give you things without enough context.

Ask for complimentary records proactively! Think this through!

- They send you things in unreadable PDFS.

Make them send it to you in its original format. Specify “machine readable” in your FOIA.

- They delay repeatedly and with no specific reason.

File a proactive appeal.

FOIA officers generally only give you exactly what you ask for. They won’t provide you additional records just because they’ll be helpful to you. For example, let’s say you are a local reporter and you are writing a story because you believe that the new stoplight the city installed at an intersection is faulty and leading to additional wrecks. To prove this, you file a request with the local road authority about the number of crashes at this intersection over a one year period. You get it back, and the records show you that there are about 5 or 6 collisions at the intersection every month and that this number is more or less the same than it was before the stoplight was installed. Maybe you assume that there isn’t a story there and you move on. But what if traffic decreased at the same time, either because another road opened up nearby or because people chose not to drive that way in order to avoid the new, bad light? Then it would be very relevant that the number of crashes was still as high as before even though there were fewer people on the road. Per capita, crashes have actually gone up! You need to think through all of the information you need in order to answer a question.

As we’ve discussed earlier in this powerpoint, FOIA officers often try and send you things in PDFs. FOIA and most state records laws allow them to release the information to you in its “original format.” No one stores original data in a PDF. File an appeal.

FOIA and most state records laws allow the records officer to extend their deadline for a number of reasons. But, these reasons have to be specific and they have to at some point respond to you. In some states, there’s a drop dead deadline. In others, they can extend over and over and over again into infinity as long as they have a reason (New York, for example, is one of these states). If they are abusing this, file a proactive appeal. This way, at least another FOIA attorney has to look at your records request, even if they ultimately deny your appeal

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Be specific.

I would like all complaints stemming from the bureau’s decision to suspend paid family leave.
I would like copies of all HR2 forms filed with the Office of Human Resources pertaining to the bureau’s decision to suspend unpaid family leave, announced on 1/2/21. Please provide all such forms from 1/2/21 to present.
NEED: Dates, specific names, specific offices, time frames.

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Common Misconceptions

A lot of things are already online. Do not request something you can get for free right now.
Non-profits are not subject to records requests. This can be confusing!
Unless you are required to in order to qualify for expedited processing, there is no need to tell the records officer why you want the documents.

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Other misc tricks

FOIA taking forever? FOIA officer being a real pill? FOIA the FOIA.
They don’t want to sort through all those emails? Redactions taking a long time? Tell the FOIA officer you want all of them and you can sort through them yourself.
You can always amend FOIAs – shoot for the moon. File broadly and limit it later.

One of my favorite things to do if a records request is taking a long time or if the FOIA officer is definitely trash talking me is to file a broad records request for communications about my records request (generally, with the number they’ve assigned it) and for mention of my name. I’ve gotten hilarious things this way! Weird insults about me being noisy, better explanations for why they don’t want me to have the records, etc. But most often, they really don’t want to give me these records — they are embarrassing! So, they’ll often call and offer to expedite my other request if I cancel my FOIA of the FOIA. Problem solved!

This isn’t actually very useful, but it’s a nice threat to throw around and occasionally results in a speedier response: If they are telling you its taking a long time to figure out what is releasable, and they have eclipsed the time allowed to them by law, tell them they’re out of the window of time allowed under law and it’s not your problem they can’t adhere to the law in the required time so they should just give you everything amend you will sort it out yourself.

We’ve talked about this already briefly, but it’s worth mentioning again here: If you can’t figure out exactly what to request, shoot for the moon. File a very broad FOIA, which will usually open up the conversation with the agency and you can amend it later.

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So you’ve got your record.

Look at it. What other records should you request now?

For example: I got a hospital inspection report. It references a patient harming another patient, and the police were called. I want the police record. That police record mentions the assailant was charged with battery. I want the court record. That court record mentions other convictions this person had. I want those too. AND ON AND ON AND ON.

You shouldn’t stop at this one record. If you get your hands on the record and it mentions another record, go get that record. And on and on and on. I wrote a story off of a hospital inspections record that indicated a woman had hung herself in her room at a behavioral institution. It offered me the time and date of the death, and I knew the death had occurred at the hospital. This was enough information in this state (Texas) to call the coroners office and get her name, because they were able to look up her death by the time and location. Once I had her name, I could request her autopsy record. Her autopsy record referenced a police officer, so I got the police records and that officer’s notes. Those notes named a family member, and so I found that family member’s number and was able to interview them. Use records as a map!